Summary: Miss X complained the Council failed to provide educational provision to two of her daughters. She says the Council’s actions caused avoidable stress and anxiety and negatively impacted both daughter’s mental health and education. We found fault by the Council. The Council has agreed to apologise to Miss X and her daughters and provide a financial remedy.

The complaint

1. Miss X complained the Council failed to provide educational provision to two of her daughters. She complained:
1. The Council did not provide educational provision to her daughter, whom I shall refer to as Y, when she was unable to attend school. Miss X says the Council also did not provide the provision as set out in Y’s Education, Health and Care Plan.
2. The Council did not provide the provision as set out in her other daughter’s Education, Health and Care Plan. I shall refer to Miss X’s other daughter as Z.
2. Miss X says the Council’s actions caused her avoidable stress and anxiety, and negatively impacted Y’s and Z’s mental health and education. Miss X would like the Council to apologise, provide adequate education to her daughters, and provide a financial remedy.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
6. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
7. Under our information sharing agreement, we will share this decision with the Office for Standards in Education, Children’s Services and Skills (Ofsted).

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What I have and have not investigated

8. I have investigated the complaints referred to in paragraph one for the period February 2023 to May 2024.
9. I have exercised discretion to investigate the complaint dating back to February 2023. I have not investigated events after May 2024 as the Council issued its final complaint response in May 2024. Events after this date are after the Council’s final response and are therefore not part of the Council’s complaint investigation.

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How I considered this complaint

10. I discussed the complaint with Miss X and considered the information she provided.
11. I made enquiries to the Council and considered the information it provided.
12. Miss X and the Council had the opportunity to comment on a draft of this decision. I considered their comments before making a final decision.

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What I found

Education, Health and Care Plans

13. A child or young person with special educational needs may have an Education, Health and Care (EHC) Plan. This document sets out the child’s needs and what arrangements should be made to meet them. The EHC Plan is set out in sections. We cannot direct changes to the sections about their needs, education, or the name of the educational placement. Only the Tribunal or the council can do this. 
14. The council must arrange for the EHC Plan to be reviewed at least once a year to make sure it is up to date. The council must complete the review within 12 months of the first EHC Plan and within 12 months of any later reviews. The annual review begins with consulting the child’s parents or the young person and the educational placement. A review meeting must then take place. The process is only complete when the council issues its decision to amend, maintain or discontinue the EHC Plan.
15. The council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). The Courts have said the duty to arrange this provision is owed personally to the child and is non-delegable. This means if the council asks another organisation to make the provision and that organisation fails to do so, the council remains liable (R v London Borough of Harrow ex parte M [1997] ELR 62), (R v North Tyneside Borough Council [2010] EWCA Civ 135)  
16. We accept it is not practical for councils to keep a ‘watching brief’ on whether schools and others are providing all the special educational provision in section F for every pupil with an EHC Plan. We consider councils should be able to demonstrate appropriate oversight in gathering information to fulfil their legal duty. At a minimum we expect them to have systems in place to: 

• check the special educational provision is in place when a new or amended EHC Plan is issued or there is a change in educational placement; 
• check the provision at least annually during the EHC review process; and 
• quickly investigate and act on complaints or concerns raised that the provision is not in place at any time. 

Alternative provision

17. Under section 19 of the Education Act 1996 councils have a duty to make arrangements for the provision of suitable education, at school or otherwise, for children who, because of illness or other reasons, may not receive suitable education unless such arrangements are made for them.
18. Suitable education means efficient education suitable to a child’s age, ability and aptitude and to any special educational needs they may have. (Education Act 1996, section 19(6))
19. The education provided by the council must be full-time unless the council determines that full-time education would not be in the child’s best interests for reasons of the child’s physical or mental health. (Education Act 1996, section 3A and 3AA)
20. Councils must have regard to statutory guidance, (Arranging education for children who cannot attend school because of health needs (Dec 2023)). Councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. However, we would expect councils to provide evidence they have objectively considered whether the education arranged by the school is suitable.

What happened

21. The amount of information provided as part of this investigation was considerable. In this decision statement, I have not made reference to every element of that information, but I have not ignored its significance. This chronology includes key events in this case and does not provide details of everything that happened.
22. Miss X’s two daughters, Y and Z, attended a mainstream school.
23. In February 2023, Y stopped attending school. Miss X says Y has autism and experiences anxiety. She says Y found the school environment too noisy, and says the school was not able to accommodate Y’s needs.
24. On 21 April 2023, the Council issued an EHC Plan for Y, setting out the support and provision to be made for her at school.
25. The Council says it held a professional’s meeting in May 2023 to plan how to support Y back into school. It says it agreed a reintegration plan for Y to attend school for one hour a day. The Council says however, Miss X subsequently sent emails explaining Y’s anxiety prevented her from attending.
26. The Council says it sent consultations to specialist schools in July 2023 to enquire about a placement for Y.
27. In August 2023, the Council issued an EHC Plan for Miss X’s other daughter, Z, setting out the support and provision to be made for her at school.
28. In October 2023, Miss X emailed the Council. She said she had received very little communication from the school regarding the difficulties faced by Y in trying to reintegrate. Miss X said although Y had an EHC Plan, she was receiving no educational support. Miss X also said Z had received a diagnosis of autism spectrum disorder (ASD) in July 2023. She said despite Z having an EHCP, the provision in her plan had not been implemented.
29. The Council held a Team Around the Family (TAF) meeting in November 2023 to discuss the education needs of Miss X’s children. The Council says its special educational needs and disability (SEND) service manager wrote to Miss X at about this time with an offer of an interim tuition package.
30. On 17 November 2023, Miss X complained to the Council. She said the Council had not implemented the provision set out in Y’s and Z’s EHC Plans. Miss X also complained the Council had provided no educational support to Y since she had been unable to attend school in February 2023.
31. The Council held a TAF meeting in December 2023. The Council requested a copy of Z’s diagnosis of ASD and identified some action points regarding Z’s provision. The Council acknowledged Y’s school would arrange a tutor for her. It also discussed the possibility of carrying out an emergency annual review to consider making amendments to Y’s EHC Plan. Miss X confirms she requested that this took place.
32. On 7 December 2023, the Council provided its complaint response. It said the Council believed Z received a diagnosis of ASD in July 2023, but it did not have a copy of the diagnostic report. The Council said one of the specialist schools it had approached had advised it was unable to offer Y a placement. The Council said it had not received a response from the other specialist school. The Council acknowledged it had allowed the consultation process to drift and apologised to Miss X. The Council said the delay was due to staffing instability. The Council said its SEND manager had written to Miss X to offer an interim tuition package but had not received a response.

What happened next

33. Miss X asked the Council to escalate her complaint to stage two. She said she was not satisfied with the Council’s complaint response and said the Council had only communicated with her during the meetings she had attended. Miss X said she had not received any offer of support.
34. The Council says it attended a meeting with the school in December 2023. It says the school reported it had been sending work packs home to Y. It also reported the school had arranged for a private tutor to visit Y at home, with the first session taking place that month.
35. Miss X was dissatisfied with the tuition provided. She says the tutor only attended a few sessions and did not support Y. These tutoring sessions stopped as a result.
36. The Council says it sent further consultations to other schools in January to enquire about a placement.
37. On 25 January 2024, Miss X emailed the Council expressing her concerns about Z’s attendance at school. Miss X said Z was struggling to engage at school, and the situation was becoming more mentally challenging for her. Miss X said Z required more time with her keyworker as a result. Miss X also said Y had not received any education since the cancellation of the tutor.
38. The Council replied on the same day. It acknowledged Miss X’s concerns and said it seemed appropriate to hold an annual review of Y’s EHC Plan.
39. The Council contacted Miss X in February 2024 and said it had contacted some alternative provision providers to see what they could provide for Y. At about the same time, the Council sent some further consultations to other schools to enquire about a placement.
40. The Council attended a TAF meeting in February 2024. It acknowledged it had contacted several alternative education providers, but some of them had not worked out. The Council said alternative provision would start with another provider later that month. The Council also reviewed the steps taken regarding provision for Z.
41. In March 2024, Miss X asked the Council for an update regarding the consultations sent to the other schools regarding a placement for Y. The Council replied and said most of the schools had responded to say they could not offer a placement. It said some of the schools had not yet responded.
42. That same month, the Council says the school reported that the alternative provision that started in February 2024 had not worked out. The Council says Miss X reported that Y struggled to access the online tuition. It says Miss X declined the offer to provide someone to support Y in accessing the online tuition. It says this was because Miss X considered Y would not be comfortable with this.
43. In March 2024, the Council carried out an annual review of Z’s EHC Plan. The review recorded that it was difficult to implement some of the provision for Z because her attendance was sporadic, and she appeared to avoid certain lessons.
44. The Council held a TAF meeting that same month. Regarding provision for Y, the Council noted the family found online learning difficult to access; it considered personal tutoring was preferable. The Council recorded that Z’s attendance at school remained sporadic and that since the annual review, she had received more 1:1 support.
45. In May 2024, Miss X asked the Council to make some amendments to the draft EHC Plan for Z.
46. On 8 May 2024, the Council held an annual review of Y’s EHC Plan. The outcome of the review decided Y required a placement at a specialist school. It also acknowledged Y had not received consistent full-time education since February 2023.
47. On 17 May 2024, the Council issued its final, stage two complaint response. It said the stage one response acknowledged that although the Council received Z’s diagnosis of ASD in July 2023, it did not have the diagnostic report at that time. The Council said this may have been the reason for the delay in implementing the provision set out in Z’s EHC Plan. Regarding Y, the Council said it had held meetings to implement the EHC Plan, but due to staffing issues, there had been delays. The Council acknowledged it needed to improve its communication and said it was working towards making improvements. The Council apologised to Miss X for its service delivery regarding its communication with her. It said it had arranged further meetings to discuss the educational support for Y and said it hoped these would be fruitful.
48. Miss X remained dissatisfied with the Council’s response and brought her complaint to us.

What happened later

49. The Council issued a final EHC Plan for Y on 31 July 2024, naming a specialist school as the education setting.

Analysis – educational provision for Y and Section 19

50. Miss X complained the Council did not provide educational provision to Y when she was unable to attend school and did not provide the provision as set out in her EHC Plan.
51. The Council says the school was responsible for educational provision between February and 20 April 2023, as this period was prior to the issuance of the final EHC Plan. The Council says it liaised closely with the school, ensuring it took active steps to try multiple ways to engage Y in learning during the period she did not attend school. The Council says it was satisfied that all the providers the school utilised for making provisions for Y were suitably registered and qualified organisations. 
52. The Education Act 1996 (Section 19) states that education authorities must make suitable educational provision for children of compulsory school age who are absent from school because of illness, permanent exclusion, or who are ‘otherwise’ unable to attend school. The provision can be at a school or otherwise, but must be suitable for the child’s age, ability and aptitude, including any special needs.
53. I acknowledge the Council says it considers the school was responsible for education provision from February to April 2023. However, where a child cannot attend school because of health problems, and would not otherwise receive a suitable full-time education, the Council is responsible for arranging provision. 
54. Councils must have regard to statutory guidance, (Arranging education for children who cannot attend school because of health needs (Dec 2023)). This explains that councils are not expected to become involved in situations where a child can still attend school with some support, or where a school has made arrangements to deliver suitable education outside of school. However, we would expect councils to provide evidence that they have objectively considered whether the education arranged by the school is suitable.
55. I acknowledge the Council liaised with the school. I also acknowledge the alternative provision providers arranged by the school may have been registered and qualified. But the Council’s response to our enquiries does not explain how it satisfied itself the provision made was a suitable education for Y. The Council has provided no insight into how it satisfied itself that the content of the work provided, the amount of work provided, and the way in which it was provided to Y was suitable, from either the school, or the alternative provision providers. This detail is not provided in the Council’s response to our enquiries or in the records of the TAF meetings. In addition, Miss X says the work sent by the school was group work and was not for an individual. She says some of the work required schoolbooks which were not supplied.
56. The evidence shows, on the balance of probabilities, the Council did not objectively consider whether the education arranged for Y for the period February 2023 to May 2024 was suitable. As a result, the Council did not maintain due regard to its section 19 duties. This is fault.

Special educational provision as set out in Y’s EHC Plan

57. As previously stated, the council has a duty to secure the specified special educational provision in an EHC Plan for the child or young person (section 42 of Children and Families Act).
58. The Council says it tried to secure as much EHC Plan provision as possible for Y by liaising closely and frequently with the school. It says this was to ensure the school was proactively trying multiple ways to engage Y in learning during the period she was not attending school.
59. The Council says it discharged its section 42 duties regarding Y by issuing the final EHC Plan to the school, holding an annual review, and liaising closely with the school and Miss X through regular TAF meetings, at which it discussed the issues and concerns regarding Y’s schooling.
60. I acknowledge the Council’s explanation. I also acknowledge the provision set out in the EHC Plan was predominately in relation to supporting Y during her attendance at school. Miss X says Y was unable to attend school due to her anxiety and this is acknowledged by the Council. As a result, it was not possible for the Council to fully secure the provision as set out in the EHC Plan.
61. While it is not practical for councils to keep a ‘watching brief’ on whether schools are providing all the special educational provision in section F for every pupil with an EHC Plan, we consider councils should be able to demonstrate appropriate oversight to fulfil their legal duty. This includes checking the provision at least annually during the EHC review process and taking quick action where complaints or concerns that the provision is not in place are raised.
62. The evidence shows the Council liaised with the school to check what special educational provision was in place. However, the Council delayed taking action on the concerns raised. This is because it did not carry out the annual review within 12 months of the issuance of Y’s EHC Plan.
63. The Council issued Y’s final EHC Plan on 21 April 2023. The annual review took place on 8 May 2024. This period is greater than 12 months and is therefore evidence of delay.
64. In addition, during the TAF meeting on 6 December 2023, the Council considered carrying out an emergency review to amend the plan. This was because the support as set out in the EHC Plan at the time was not successful in reintegrating Y back into school. The Council referred to an early annual review again in its email to Miss X on 25 January 2024, considering this ‘seemed appropriate’. Despite this, the annual review did not take place until May 2024. This is delay.
65. This delay, and the failure to carry out the annual review within 12 months of the first EHC Plan is fault. Had the Council carried out the review of the plan sooner, it is more likely than not it would have named a specialist setting for Y earlier.

Analysis - Special educational provision for Z

66. Miss X complained the Council did not provide the provision as set out in Z’s EHC Plan. She said the school made no provision for the period February 2023 to May 2024 despite her requests.
67. The Council says it issued Z’s final EHC Plan on 21 August 2023 and says it sent a copy of the plan to Z’s school. The Council says the school’s special educational needs co-ordinator was aware of the school’s responsibility to deliver the provision as set out in the plan. The Council says the school raised concerns that Z did not attend school every day and reported that some of the provisions were well received by Z, while other interventions/provisions were refused.
68. The Council says it was not made aware of any provision that was not being offered to Z; it says the school offered all the provisions as set out in section F of the plan. I acknowledge however, Miss X says she sent emails providing details of the missing provision.
69. The Council says it discharged its section 42 duties by issuing Z’s final EHC Plan to the school, holding an annual review, and liaising closely with the school and Miss X through regular TAF meetings. The Council says Z’s schooling was an agenda item at every TAF meeting, and that these were attended by multiple professionals, the school and Miss X.
70. I acknowledge the Council’s comments that it considers it was the responsibility of the school to deliver the provision as set out in the plan. However, as previously stated, the council has a duty to make sure the child or young person receives the special educational provision set out in section F of an EHC Plan (Section 42 Children and Families Act). This duty is non-delegable.
71. I acknowledge the evidence demonstrates the Council discussed Z’s schooling regularly at the TAF meetings. It also carried out an early annual review due to the concerns raised by Miss X.
72. However, the Council acknowledged in its stage two response that there were delays in implementing section F. It said this may have been due to it not initially having Z’s diagnostic report of autism. I acknowledge the Council’s comments; it is positive it identified the delay itself as part of its own complaint investigation. Nevertheless, as the Council retained a duty to ensure Z received the provision set out in section F, from the time the plan was issued, the delay identified is fault.

Complaint handling

73. The Council has a two-stage complaints process. At stage one, the Council says it will send a full response within 10 working days. At stage two, the Council says it will reply in writing within 20 working days. At both stages, if the Council requires more time, it says it will let the complainant know and provide a new date for a response.
74. Miss X made her stage two complaint on 7 December 2023. The Council provided its stage two response on 17 May 2024. This timeframe is not in line with the Council’s complaints policy and is therefore fault. This caused additional time and trouble to Miss X in the pursuance of her complaint.
75. Miss X says the Council’s actions caused severe anxiety to Y and Z. She says this affected Y’s ability to eat and sleep and negatively impacted her view of self-worth. Miss X says Z’s anxiety and poor mental health led her to self-harm. Miss X says the Council’s actions also caused avoidable stress and worry to her.

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Agreed action

76. To address the injustice identified, the Council has agreed to carry out the following action within one month of the final decision:
1. Provide an apology to Miss X, Y and Z for the fault identified. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
2. Make a symbolic payment of £6,600 for the benefit of Y in recognition of the loss of educational provision;
3. Make an additional symbolic payment of £500 for the benefit of Z in recognition of the distress caused as a result of the delay in implementing the provision set out in her Education, Health and Care Plan;
4. Make an additional symbolic payment to Miss X of £250 in recognition of the time and trouble caused by the fault identified as part of the Council’s complaint handling;
5. Remind staff of the Council’s responsibility to objectively consider the suitability of education arranged by a school for a child who cannot attend because of health problems;
6. Remind staff of the Council’s duty to carry out annual reviews within 12 months of the issue of final Education, Health and Care Plans;
7. Remind staff of the Council’s duty to ensure a child or young person with an Education, Health and Care Plan receives the special educational provision as set out in the plan, and
8. Remind staff to adhere to the council’s complaints procedure.
77. The Council should provide us with evidence it has complied with the above actions.

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Final decision

78. I have found fault by the Council and the Council has agreed to take the above action to remedy the injustice identified. I have therefore concluded my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman